Every person has the right to clean and safe water in adequate quantities. [Art. 43 (1) (d), Constitution of Kenya]
Humans don't create water. They don't create the land on or in which water is found. Humans don't create the ponds, rivers, lakes, seas, oceans and aquifers where water is found. They are not responsible for the clouds that fall to Earth as rain. Humans can't create water. Humans can only exploit water. For food. For manufacturing. For transport. For profit.
Kenya's Constitution places an onerous responsibility on Kenyans to protect and conserve the environment that is the source of the water exploited for profit. The manner in which the environment will be protected and conserved is a matter of legislation: the Forest Conservation and Management Act, Water Conservation and Management Act, Wildlife Conservation and Management Act, Climate Change Act, and Environmental Management and Co-ordination Act, and the numerous regulations, guidelines and other statutory instruments issues by the Government.
Legislation is a reflection of the representative nature of the Government. Voters choose the elected representatives. Elected representatives form the executive and legislature. Together, the legislature and executive enact laws. The laws reflect the collective constitutional settlement of the people that natural resources must be protected and conserved for the greater common good and that the accruing benefits must be equitable shared by the people - including, dare I say, the protection of the right of the people to clean and safe water in adequate quantities.
No one is saying that water services shall be provided for free by (or under the authority of) the Government. (Water services are the method by which clan and safe water in adequate quantities is supplied to the people.) If it were left to "the market" to decide, those who couldn't afford the "market price" for water services would be denied those services. The market, and its "efficient allocation of capital", would ignore the people who couldn't afford to pay for water services and prefer those who could pay he highest rate. Anyone who thinks that this is what the Constitution of Kenya intended was not paying attention to what the majority of the voters who supported the Harmonised Draft Constitution wanted or demanded.
It isn't enough to bring forward economics arguments inspired by dead Austrians to show that in the long run the provision of water services under the current framework will "fail". One must also demonstrate that this economics lesson has the support of the people, in whose name the Constitution was adopted, and that the people collectively want to deny the least among them access to any form of water services if they are incapable of paying a market price. Constitutional rights, it turns out, are a reflection of the highly personalised nature of human relationships as opposed to the impersonal economics principles beloved by statisticians and similar small animals.
Kenyans adopted a Constitution that eschews the extremism of libertarians. It is not libertarian in nature at all. It doesn't contemplate "small government". Instead, it promotes collectivism of a kind that offends free-market zealots. It is not extremely collectivist either; after all, it does not even remotely propose "free stuff" for those who don't have stuff. It attempts to strike a balance between the two extremes and it is up to us as individuals, our elected representatives, and the laws they enact, to find that balance.